because there is a significant governmental interest in protecting all citizens
from gun violence that is reasonably
foreseeable when a controversial group
applies to march to disseminate known
hate speech. The alt-right speaker
urging “Kill the Jews” while holding a
rifle probably would not get a permit,
or would be violating a condition of a
permit, and could be arrested for legitimate reasons that would have nothing
to do with his speech.

This illustration shows that, as
in so many other areas of the law,
application of the First Amendment
is extremely fact-dependent, because
so many variables affect the outcome.

The only seemingly new variable of
major concern that should affect First
Amendment analysis is the presence
of guns accompanying hate speech,
because America is more and more an
armed society.

In the absence of guns, the FirstAmendment should continue to protecthate speech or we risk becoming a hyp-ocritical society, with a double standardthat allows the First Amendment tobe applied selectively. As a practicalmatter, the First Amendment mustprotect non-violent hate speech so thatit may also apply to protect speech thatreacts to it.

The First Amendment rests upona belief that freedom of speech is es-sential to individual natural liberty, es-sential to what it means to be human. 19

Without freedom of speech citizens
cannot have freedom of thought. As
Justice Kennedy explained, “First
Amendment freedoms are most in
danger when the government seeks to
control thought or to justify its laws
for that impermissible end. The right
to think is the beginning of freedom,
and speech must be protected from
the government because speech is the
beginning of thought.” 20

Knowledgeable G Experienced G Efficient

Without the First Amendment, the
very system of government advocated
by many who espouse hate speech
could be possible. Fascism, Nazism, or
any type of authoritarian government
depends upon silencing opposition and
controlling thought. The First Amendment, enforced by federal courts, erects
a barrier against this possibility. The
price Americans pay for this protection
must be tolerance for the expression of
viewpoints that offend, disgust, or spew
propaganda—or we will be no better than
those we want to silence.

One way to dilute, or even silence,hate speech might be to ignore it, giv-ing it no publicity or public attention.

This approach seems both unlikely, and
unlikely to be successful, because many
Americans feel the need to openly and
actively refute speech they believe to
be false, wrong, dangerous, or contrary
to strongly held values. Therefore,
the antidote to hate speech must be
countering speech that corrects it or
persuades an audience to reject it.

Justice Louis Brandeis, in hisconcurring opinion in Whitney v.

California, 274 U.S. 357, 377 (1927),
said “If there be time to expose through
discussion the falsehood and fallacies,
to avert the evil by the process of
education, the remedy to be applied
is more speech, not enforced silence.”
(Emphasis added.)